CA6 upholds Ohio's "reason ban" that reads as a ban on abortions performed bc of a Down syndrome diagnosis.

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0083p-06.pdf

The en banc majority says the law restricts communications & d/n prohibit abortions bc it only prevents abortions where a patient communicated with a doctor about reasons for having an abortion.

As such, CA6 en banc says the law furthers the state's interest in ensuring doctors d/n participate in eugenics.

As I said yesterday, today would be a really good day to read @ProfMMurray's @HarvLRev article about the movement to restrict reproductive rights & justice in the name of equity/justice: https://twitter.com/LeahLitman/status/1381611941874040835?s=20

Judge Cole's dissenting opinion would invalidate the law, as construed by the majority, on First Amendment grounds. (Majority wouldn't reach because plaintiffs didn't raise this argument they say.)

Judge Donald's dissenting opinion would invalidate the law as an undue burden.

Judge Moore's dissenting opinion: https://twitter.com/mch_tweets/status/1381994422284525570?s=20

Judge Gibbons (appointed by Pres. Bush II) dissents:

Judge Clay dissents, saying the majority is overruling Whole Woman's Health.

The majority says the undue burden standard isn't relevant because SCOTUS has never addressed the constitutionality of a law like Ohio's (this is ... not really how precedent works? a #SCOTUS case can supply a governing legal standard for laws other than ones it's reviewed.)

Judge Sutton concurs, saying the federal courts shouldn't be deciding abortion cases because it prevents localities from weighing interests in different ways (this is a reason to overrule Roe/Casey).

Judge Griffin concurs, likening women who obtain abortions to eugenicists.

Judge Kethledge concurs, emphasizing the existence of a circuit split (which would support #SCOTUS taking one of these cases). Justice Thomas's Box concurrence encouraged states to bring/courts to take up these cases, which would generate a split justifying #SCOTUS review.

Judge Bush concurs, because what we really need is more men writing on this topic.

He says even if the law banned some abortions pre viability, it would be constitutional.

(This too would be a departure from Casey, which said a state can't impose an undue burden on pre viablility abortions. And a ban would be an undue burden.)